State v. Barrett

• Decision Date: 29 April 1998
• Citation: 958 P.2d 215,153 Or.App. 621
• Parties: STATE of Oregon, Respondent, v. Jacob BARRETT, Appellant. 9402002CR; CA A91378.
• Court: Oregon Court of Appeals

Page 215

958 P.2d 215

153 Or.App. 621

STATE of Oregon, Respondent, v. Jacob BARRETT, Appellant.

9402002CR; CA A91378.

Court of Appeals of Oregon.

Argued and Submitted Jan. 29, 1997.

Decided April 29, 1998.

Peter Gartlan, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, C.J., and De MUNIZ and HASELTON, JJ.

DEITS, Chief Judge.

Defendant and two accomplices robbed a market in Klamath County. During the robbery, defendant pushed the owner of the store into a back room, then shot her when she returned to the outer portion of the store. Defendant was charged with three counts of aggravated murder (counts one through three), ORS 163.095, one count of murder (count four), ORS 163.115, and robbery in the first degree (count five), ORS 164.415. He pleaded no contest to all of the charges. Each count of the aggravated murder charges included the same victim but was based on a different underlying felony. The felonies underlying the aggravated murder convictions were: 1) first degree robbery (count one); 2) second degree kidnaping (count two); and 3) murder committed in an effort to conceal the identity of the perpetrator of a crime (count three).

The trial court merged the murder conviction with the conviction on the third count of aggravated felony murder and merged the independent robbery conviction with the first count of aggravated felony murder. The court then sentenced defendant to a life sentence with a 30-year minimum on count one, a life sentence with a 30-year minimum on count two to be served consecutive to count one, and a life sentence with a 30-year minimum on count three to run concurrent with count one. Defendant argues that the trial court erred in not merging the three aggravated murder convictions and by imposing the consecutive sentences. We affirm.

ORS 161.062(1) provides that "[w]hen the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations." In State v. Crotsley, 308 Or. 272, 278, 779 P.2d 600 (1989), the Supreme Court held that in order for ORS 161.062(1) to be applicable to defendant's conduct, the following questions must be answered in the affirmative:

"(1) Did defendant engage in acts that are 'the same conduct or criminal episode,' (2) did defendant's acts violate two or more 'statutory provisions,' and (3) does each statutory 'provision' require 'proof of an element that the others do not.' "

The state asserts that this test was satisfied. It acknowledges that, while each count of felony murder required proof that defendant intentionally caused the death of the victim, each count also required proof of an element not required by the others. Count 1 required proof that defendant killed the victim "in the course and in furtherance of" first degree robbery. Count 2 required proof that defendant killed the victim "in the course of and in furtherance of" second degree kidnaping, and count 3 required proof that defendant killed the victim "in an effort to conceal the identity of a perpetrator" of the robbery.

Defendant argues, relying on the Supreme Court's decisions in Crotsley and State v. Kizer, 308 Or. 238, 779 P.2d 604 (1989), that in order to constitute a separate statutory provision for purposes of ORS 161.062(1) the statutory sections must address separate legislative concerns. Defendant points out that in Kizer, the Supreme Court concluded that the legislature was addressing the same legislative concern in each of the two subsections setting forth how forgery could be proven, ORS 165.007, ¹ and, therefore, only one conviction could be entered. 308 Or. at 243, 779 P.2d 604. The court noted that the DUII statute, ORS 813.010, ² was a similarly written statute and, accordingly, only one DUII conviction could be entered, even if alternate means of committing DUII are proven. Id.

In defendant's view, the three charges here did not arise from three different crimes but rather from three different theories for proving the same crime. Defendant argues that, simply because the legislature provided for a number of ways of proving aggravated murder, it does not follow that the legislature intended to create distinct and separate crimes for each underlying felony in circumstances such as these where there is only one victim. Defendant contends that the aggravated murder statute is similar to the forgery statute in that under those statutes each theory of proving the respective crimes addresses the same legislative concern, and that under the aggravated murder statute the legislative concern addressed is engaging in criminal felony behavior that is likely to result in the death of someone. Consequently, in defendant's view, the statutory provisions here are not separate statutory provisions for purposes of ORS 161.062(1) and, therefore, only one aggravated murder conviction may be entered.

We have not addressed the specific argument that defendant makes here; namely, whether ORS 163.095 addresses a single legislative concern for purposes of ORS 161.062(1) or whether the various felonies listed by reference in ORS 163.095(1)(d) identify distinct and separate legislative concerns. We indirectly answered that question in our refusal to merge felony murder convictions that were based on different underlying felonies, even though the convictions involved the same victim, in State v. Burnell, 129 Or.App. 105, 877 P.2d 1228 (1994). In Burnell, the defendant was convicted on two felony murder counts, each based on a different underlying felony but resulting in the death of a single victim. We held:

"When a defendant is found guilty of multiple felony murder counts, if each of the underlying felonies requires proof of an element not required in another count, then the felony murder charges do not merge, notwithstanding the fact that there was only one homicide victim." Id. at 109, 877 P.2d 1228. (Emphasis supplied.)

See also State v. Hessel, 117 Or.App. 113, 122, 844 P.2d 209 (1992), rev. den. 318 Or. 26, 862 P.2d 1305 (1993).

The basis for defendant's convictions on the aggravated murder counts here was that defendant "personally and intentionally committed homicide under the circumstances set forth in ORS 163.115(1)(b)." ORS 163.095(1)(d). The circumstances as set forth in ORS 163.115(1)(b) are the enumerated bases that we held would support separate felony murder convictions in Burnell. The only substantive distinction between the felony murder statute, ORS 163.115(1)(b), and the aggravated felony murder statute, ORS 163.095(1)(e), then, is that to prove aggravated felony murder, the state must prove that the defendant "personally and intentionally committed homicide" while involved in the commission of the underlying crime. We see no reason to conclude that separate convictions for felony murder with different underlying crimes do not merge but that separate convictions for aggravated murder with different underlying crimes do merge.

Defendant recognizes our holdings in Burnell and Hessel but urges us to reconsider those decisions. ³ We see no reason to depart from our holdings in Burnell and Hessel, and we do not agree with defendant that the Supreme Court's decision in Kizer requires otherwise. In Kizer, the court indicated that the term "statutory provision," as used in ORS 161.062, did not necessarily depend on a technical determination of how many subsections a statute included. The court explained that the critical question was whether the legislature was attempting to define a "single crime" by the different subsections. The court stated:

" 'Statutory provision' in ORS 161.062 was not defined to mean a section, subsection, or paragraph; consistent with its purposes, the term can be interpreted to mean any provision defining a 'single crime,' whatever visual form the provision is given." Kizer, 308 Or. at 243, 779 P.2d 604.

In this case, each of the three counts of aggravated murder was based on a different underlying felony that required proof of an element not required by the other counts.

Further, we conclude that, consistent with the court's reasoning in Crotsley, defendant's record here should reflect that his conduct consisted of three different crimes. In its decision in Crotsley, the Supreme Court made it clear that merger was not automatically required if the same conduct and victim was involved. In Crotsley, there was one victim, a 14-year-old girl. The defendant was charged with first degree rape and three counts of first degree sodomy, because he used forcible compulsion. He was also charged with third degree rape and three counts of third degree sodomy, because the victim was under the age of 16. The defendant argued that the first and third degree rape, and the first and third degree sodomy charges, were alternative charges for the same criminal act and that "the legislature intended that convictions and sentences for lower degrees of rape and sodomy would be included within convictions and sentences for first degree rape and sodomy." Crotsley, 308 Or. at 275-76, 779 P.2d 600. The court concluded that the first and third degree rape convictions did not merge and that the first and third degree sodomy convictions did not merge, even though the first and third degree rape convictions were based on the same act and the first and third degree sodomy convictions were based on the same act. The court explained:

"The proponents of ORS 161.062 clearly intended that criminal records accurately reflect all crimes actually committed and that a person who commits multiple crimes by the same conduct or during the same...